Source: Justice Network
On February 18, 2019, after the prosecutor read out the decision not to prosecute, Dong Min, a party to the Xingtai Justifiable Defense Case in Hebei, was just sent home by the judicial police. Dong and his family cried and embraced. (Profile picture)
Can you cut back when someone else cuts you with a knife?
On New Year's Eve in 2020, Tang Xue, a post-90s girl from Lijiang, Yunnan, finally waited for a result. On December 30, 2019, the Yunnan Provincial Procuratorate notified the details of the "Lijiang Anti-Killing Case" and determined that Tang Xue, who was not prosecuted, had his family and residence repeatedly violated by Li Dexiang during the Spring Festival, especially at about 1:00 in the morning. When the door of the house was hacked and smashed and Li Dexiang kicked and fisted after going out, he first resisted with a peeling knife and then with a fruit knife. This is a self-defense to prevent the ongoing illegal infringements to protect the personal safety of myself and my family. Acts are legitimate defenses and do not bear criminal responsibility in accordance with the law. On December 30, 2019, the Yongsheng County Procuratorate withdrew the prosecution of the case and made a decision not to prosecute Tang Xue.
is not only the Tang Xue case, but also the Kunshan anti-kill case, Shandong Yuhuan case and other cases involving legitimate defense, which always arouse high public attention. Whether the party's behavior belongs to legitimate defense, over-defense or intentional injury, often becomes the biggest dispute. point.
The “sleeping” justifiable defense clause
, the so-called justifiable defense, is a stop in accordance with Article 20 of the Criminal Law to protect the state, public interest, personal, property and other rights of oneself or others from ongoing illegal infringements. Any act of illegal infringement that causes damage to the illegal infringer is a legitimate defense and does not bear criminal responsibility. Taking defensive actions against ongoing assaults, homicides, robberies, rapes, kidnappings, and other violent crimes that seriously endanger personal safety, causing unlawful infringements on human casualties, is not considered excessive defense and does not bear criminal responsibility. According to Xiong Qiuhong, a researcher at the Institute of Law of the Chinese Academy of Social Sciences, compared with the Criminal Law of 1979, the current criminal law has relaxed the identification conditions of justified defense. However, in judicial practice, there is still a phenomenon of “results only”, which leads to the criminal law regarding special The provisions of defense once became "zombie" provisions. The so-called "consequentialism" refers to the fact that in judicial practice, the necessary limit for justified defense is just that as long as the result of death or injury is excessive defense, it is not conducive to reflecting the fairness and justice of justice. Cai Xueen, a representative of the National People's Congress and an attorney at Hubei Dewei Junshang Law Firm, also believes that from a legislative perspective, the provisions of the 1997 Criminal Law on legitimate defense are very beneficial to defenders, but there are often controversial legitimate defenses in judicial practice. case. According to relevant research data, in legitimate defense dispute cases, less than 10% of legitimate defense cases are recognized by the judiciary, and the vast majority of cases are recognized as excessive defense, even intentional injury or intentional homicide. For more than 20 years, the judicial application of justifiable defense has become more conservative, and the rules that "obviously exceed" the "necessary limit" and "cause significant damage" are general and difficult to grasp, which has caused many problems in judicial application. In Cai Xueen's opinion, the reasons why judicial organs seldom apply justified defense clauses are as follows: One is the result theory, which does not fully consider the necessity of defense behavior. In the case of justifiable defense, once the result of death and injury occurs, the thinking of "only the dead and the wounded" and "killing for life" tends to take the initiative, and the defender usually falls into the excessive defense of "beyond the necessary limit and cause major damage". The second is to put too much emphasis on equal power, otherwise it will be over-defense. The upgrade of tools does not necessarily exceed the necessary limits. Defenders use tools to fight back, precisely in order to effectively stop illegal infringements. The third is the rational perspective after the fact, which failed to take into account the situation of the defender. For cases in which legitimate defense may be applied, if the defender's defense elements are judged from a completely rational perspective afterwards, it is a bit too demanding for the defender.
"In recent years, typical legitimate defense cases such as the Kunshan Anti-Killing Case have activated special defense mechanisms, corrected the misunderstanding of judging whether defenses are inappropriate, and changed the phenomenon of'good people being punished' in the past judicial practice. , Reflects the policy orientation of giving priority to protecting the interests of the victims." Xiong Qiuhong said.
From "sleeping" to "waking up"
In December 2018, the Supreme People's Procuratorate issued the twelfth batch of guiding cases. In this batch of cases, not only the case of Yu Haiming's legitimate defense (i.e. the Kunshan anti-kill case), but also There was a case of Chen's legitimate defense and Zhu Fengshan's intentional injury (The case of over-defense, and the case of Hou Yuqiu. It specifically explained under what circumstances belonged to legitimate defense, what circumstances belonged to excessive defense, and what circumstances belonged to assault.
“These guiding cases clarify the protection of citizens’ legitimate defense rights. They not only provide a more detailed reference for the procuratorial organs to handle such cases, but also demonstrate the judicial concept of “the law cannot make concessions to the lawless”, which means that they have been sleeping in the past. The justified defense clauses of the People's Republic of China began to gradually regain consciousness." Wen Kehong, prosecutor of the Xingtai City Procuratorate in Hebei Province, told reporters.
In May 2018, Diao, a villager in Julu County, Xingtai City, broke into the home of Dong Mingang, a villager, and was killed during the disturbance, which caused concern. This case is also known as the "Justifiable Defense Case in Xingtai, Hebei". After returning to the public security organs for supplementary investigations twice and the procuratorate's own supplementary investigations, the Xingtai City Procuratorate of Hebei Province determined that Dong Mingang's actions were legitimate defense and did not bear criminal responsibility, and made a decision not to prosecute him.
Wen Kehong said that during the second time when the Dong Mingang case was returned to supplementary investigation, according to the clear explanation of the guiding case, whether the legitimate defense clearly exceeded the necessary limit, "should be based on the nature, means, intensity and degree of harm of the illegal infringement, and The nature, means, intensity, timing and environment of the defensive behavior shall be comprehensively judged." Therefore, in this case, the important reason why we believe that Dong Mingang's behavior belongs to legitimate defense is to make a comprehensive judgment on illegal infringement and defense behavior, and focus on the environment of the defender to judge whether his behavior exceeds the necessary limit.
's handling of Dong Mingang's case also gave Wen Kehong a deeper understanding. "Whether the final judicial conclusion made by the prosecutor can make ordinary people feel fair and justice is very important. We are not applying the law mechanically, but It is to integrate human nature into the understanding of the law, and finally arrive at a judgment that conforms to human common sense."
This is also the case in a case in Daxing District, Beijing. On August 6, 2018, when Yu Manjiang and Yan Shanqing, as security guards, were on duty at a Beijing Biopharmaceutical Co., Ltd., Yang Yun's medium-sized dog rushed into the lawn of the company's yard, and Yan and Yu went out to bomb the dog, and Yang Yun Yun quarreled and beat each other, causing Yang Yun to fall on the ground with his right hand and blunt contusion to Yang Yun's right eye (not a minor injury). Ten minutes later, Yang Yun took a kitchen knife from his home and rushed to the door of the company's guard room. While insulting, he brandished the kitchen knife at Yu Manjiang and Yan Shanqing. Yu Manjiang and Yan Shanqing rushed out with rubber sticks and riot steel forks respectively. Yang Yun has been holding a kitchen knife and slashing at the two of them. The two defended Yang Yun in the company hospital, causing Yang Yun's left ulna distal comminuted fracture, left forearm soft tissue injury, and front chest skin laceration, which was identified as mild by forensic medicine. Injury one level. After the
case was transferred for review and prosecution, the Daxing District Procuratorate determined that Yu Manjiang and Yan Shanqing should belong to legitimate defense and not bear criminal responsibility in accordance with the provisions of the Criminal Law. Professor Che Hao, deputy dean and professor of Peking University Law School, commented on the case: "'There is no need to make concessions to the wrong' is the core concept of legitimate defense. It is implemented at a specific practical level, that is, in the face of illegal infringement, the defender has no obligation to evade. Prosecutors can clarify the right of defenders not to evade, clarify the boundaries between mutual assault and defense, resist pressure and insist on the identification of legitimate defense, highlighting the image of the judiciary that is advancing with the times, upholding justice, and daring to take responsibility."
The handling of the'Kunshan Anti-Killing Case, the Laiyuan Anti-Killing Case' and other cases has demonstrated a strong social responsibility." Li Zan, a deputy to the 13th National People's Congress and a professor at the Sichuan University Law School, said that the legislation for legitimate defense It is incompatible with the actual situation. This situation should have been effectively rectified through judicial practice. However, in the judicial process, due to the excessive entanglement of some basic provisions of the law, it has highlighted a conservative attitude in the determination of legitimate defense. And the position makes the system of legitimate defense not play its due role. Recently, the procuratorial organs have made very positive decisions not to prosecute in several typical cases, and have a positive demonstration effect in correcting our long-standing conservative practices in legitimate defense. In handling these cases, the procuratorial organ implemented a new idea and a new concept, and demonstrated a strong social responsibility and ethical responsibility. This is a new act of the procuratorial organ and a new atmosphere.
Accurate application of the justifiable defense clauses
Justified Defense Laws are familiar, but the identification of justified defense is not easy. How to determine the standard of justifiable defense?
According to the criminal law, only the following five conditions can constitute legitimate defenseThe first is the cause condition: the illegal infringement exists in reality; the second is the subjective condition: there is a sense of defense; the third is the time condition: the illegal infringement is ongoing; the fourth is the target condition: the defense against the infringer; the fifth is the limit condition: the necessary limit is not exceeded. According to He Jihong, the prosecutor of the Yibin City Procuratorate in Sichuan Province, to be specific, first of all, the cause of legitimate defense must be an objectively existing illegal infringement. "Illegal" refers to what is not allowed by the law, and its infringement constitutes a crime. Secondly, only when the illegal infringement is in progress can it pose a threat and urgency to the legitimate rights and interests, and therefore can make the defensive behavior legal. Thirdly, justifiable defense requires the defender to have defensive awareness and defensive will. The former means that the defender recognizes that the illegal infringement is in progress, and the latter means that the defender is motivated to protect legitimate rights and interests. In addition, legitimate defense can only defend against the offender. Since the infringement is caused by the infringer, only by defending against itself can the legitimate rights and interests be protected. Even in the case of joint crimes, we can only defend against those who are committing illegal violations, but cannot defend against their associates who have not committed violations. Finally, defensive behavior must be carried out within necessary and reasonable limits, otherwise it will constitute over-defense.
He Jihong handled a legitimate defense case in Xingwen County, Yibin City. On the evening of July 16, 2016, Wang Tianwen dumped the spoil on the land near a concrete mixing plant in Zheng Mingliang and Li Shufen in Xingwen County, causing both parties to happen. Contradictory, Wang Tianwen drove the vehicle from the roadside to the Huatai and hit Zheng Mingliang and his wife, and then immediately backed up. Zheng Yuanda (the son of Zheng Mingliang and Li Shufen) rushed to the window of the cab to block Wang Tianwen and bit Wang Tianwen with his mouth. Arm, and stabbed Wang Tianwen’s left forearm with a knife that he carried with him, and twice on his back. Li Shufen and Zheng Mingliang were injured and sent to Guangming Orthopedic Hospital in Xingwen County for rescue. Li Shufen died after the rescue failed. The right pneumothorax caused by multiple knife stabbings in Wang Tianwen's whole body constitutes a minor injury, and the left forearm injury constitutes a minor injury.
"In this case, Wang Tianwen's drive to reverse Zheng Mingliang and Li Shufen and his wife was an ongoing act of assault and killing, that is, an objectively existing illegal assault is in progress." He Jihong explained that in order to prevent Wang Tianwen from hitting someone. Continuing to attack or escape, Zheng Yuanda stabbed Wang Tianwen's back and arms with a knife, that is, Zheng Yuanda had a sense of defense and only defended against the offender. At the same time, as far as the limit is concerned, taking defensive behaviors due to the violent crimes that seriously endangers the personal safety of Wang Tianwen's ongoing assaults and murders is not an excessive defense and does not bear criminal responsibility. Therefore, Zheng Yuanda's behavior satisfies the requirements of legitimate defense and should be regarded as legitimate defense and does not constitute a crime.
In judicial practice, what is prone to controversy is the definition of justified defense and excessive defense. The defensive behavior must be carried out within the necessary and reasonable limits, otherwise it will constitute an overdefense. Some experts said that for example, if A wanted to molest B, B’s companion C knocked A to the ground when he saw it, and then beat A to death with a heavy object. This obviously exceeds the necessary limit of legitimate defense. It must be noted that not everything that exceeds the necessary limit constitutes an overdefense. Only those that "obviously" exceed the necessary limit and cause significant damage are overdefensive. Defense against violent crimes that seriously endanger personal safety will not constitute excessive defense.
For example, the "Justifiable Defense Case of Xingtai, Hebei" mentioned above, the contentious point is whether Dong Mingang's behavior is justified or excessive. The prosecutor handling the case, Wen Kehong, explained that the reason why it was finally determined to be legitimate defense was that the first reason was that Diao illegally invaded another person’s house at night and continued to insult, intimidate, and beat Dong Mingang for a long time, which is an ongoing illegal act. It is sufficient to prove that Dong Mingang's personal safety is threatened by violence and is in real and urgent danger; second, Dong Mingang has no subjective purpose to kill Diao, and his act of stabbing Diao with scissors is a defense and counterattack against illegal infringements. , Subjectively for defensive purposes; third, from the point of view of defensive behavior, Dong Mingang picked up the scissors on the coffee table and confronted Diao after he escaped from the house but was dragged by Diao and continued to be beaten. hit. Therefore, Dong Mingang's behavior did not "obviously exceed the necessary limit." In addition, Dong Mingang was in a situation of fear and self-help at the time, requiring him to rationally and accurately judge the intensity of his own defensive behavior and how to avoid hurting Diao's vital parts. It is difficult for him to do, and there is no realistic possibility.
experts said that legitimate defense against illegal infringements, if used less than or equivalent to illegal infringementsIf the strength of defense is insufficient to effectively stop the illegal infringement, a defense strength greater than that of the illegal infringement may be adopted. Of course, if the defense intensity greater than the illegal infringement is not necessary to stop the illegal infringement, it is beyond the necessary limit of legitimate defense. As for the judgment of whether it exceeds the necessary limit, Xiong Qiuhong believes that a comprehensive judgment and dynamic consideration should be adopted. The factors considered include the urgency, intensity and type of illegal infringement, the necessity of defense methods and strength, and the interests to be defended. Simplify processing.
"Special attention should be paid to the abuse of the right of defense. If there is no abuse, it is legitimate defense." Ruan Qilin, a professor at China University of Political Science and Law, said for example, what is the abuse of the right of defense? For example, if a child steals a date, he will kill the child. This is obvious abuse; for another example, for vulnerable groups such as children, mental patients, and the elderly, they are clearly known to be disadvantaged, and their rights and interests are infringed; in addition, in special relationships, husbands and wives, children, etc., know that the other party is talking about killing. If you do not really want to kill but kill the other party, this is an abuse of defense.
Further improve and improve the legitimate defense system
"Since the Supreme People’s Procuratorate issued the Guiding Cases on Good Defense, local procuratorial organs have successively handled several legitimate defense cases, including the case of Dong Mingang’s non-prosecution, and achieved good legal effects and society. Effect." Shang Jinsuo, deputy to the National People's Congress and chairman of Hebei Bailiang Group, spoke highly of these cases: For more than a year, the procuratorial organs have kept up with the rhythm of the new era, uphold the principle of law not to make concessions to illegal cases, and changed society. Rule of law ecology, grasp the main responsibility of legal supervision, take the initiative, and strive to make the people feel fair and just in every case. Especially the Dong Mingang case. The handling of this case is currently representative and typical. It is hoped that the procuratorial organs will interpret the law and encourage and guide the public not to bow to injustice, to confront the wrongs, and strive to achieve political and legal effects. , The organic unity of social effects. At the National "Two Sessions" in 2019, Cai Xueen proposed that the Supreme Procuratorate and Supreme Law should issue judicial interpretations on legitimate defense as soon as possible to unify the national judicial adjudication standards. Judicial interpretation should clarify and refine the identification of the nature of legitimate defense, the grasp of defense premises, the judgment of excessive defense, the application of special defense, etc., to promote the correct application of the legitimate defense system. At the same time, it is recommended that the Supreme Law promulgate as soon as possible the applicable legal standards for related disputes, encourage legitimate defense, and protect the lawful rights and interests of those who do justice. It is recommended that the highest prosecutors issue special regulations for the review of the necessity of detention in criminal cases caused by citizens' defense and courageous actions, and more cautious use of compulsory detention measures for such cases to better protect the legitimate rights and interests of citizens.
This suggestion received a timely response from the relevant departments. At present, the Supreme People’s Procuratorate is working with the Supreme People’s Court, the Ministry of Public Security and other relevant departments to study and draft guidelines on the application of legitimate defense in accordance with the law and prepare supporting typical cases. "In the guiding opinions, we will clarify the general requirements for the application of the legitimate defense system, make specific provisions on the identification and application of legitimate defense, excessive defense, and special defense, and put forward work requirements for the public security and judicial organs to handle legitimate defense cases." According to Wu Qiaobin, Legal Policy Research Office of the Procuratorate.
"When applying legal provisions in a case, it is necessary to highlight the core value of the legal provisions and show citizens how to regulate their behavior." Cai Xueen said that the accurate application of justifiable defense clauses is to demonstrate that "the law cannot make concessions to the law."
